Shomer Peta'im Hashem (2) - "The Lord Preserves the Simple"

IV

          The question, discussed in the previous shiur, of whether the notion of shomer peta’im assumes an absence of danger or a permit to overlook danger, needs to be understood in light of a passage in tractate Ketubbot (39a):[1]

Three [categories of] women may use an absorbent during sexual relations: a minor, and an expectant and nursing mother. The minor, because otherwise she might become pregnant and die. An expectant mother, because otherwise she might cause her fetus to degenerate into a sandal. A nursing mother, because otherwise she might have to wean her child [prematurely]… these are the words of Rabbi Meir. But the Sages said: Any of these women carry on marital intercourse in a normal manner, and mercy will be shown from heaven, for it is stated: "The Lord preserves the simple."

          The wording of the Beraita, "and mercy will be shown from heaven," implies that the danger exists, but nevertheless an allowance is granted based on the principle of shomer peta'im. Only that regarding this passage we find a disagreement between Rashi, on the one hand, and Tosafot and the Ritva, on the other, as to how we are to understand the dispute between Rabbi Meir and the Sages. Rashi writes with respect to the viewpoint of Rabbi Meir: "They are permitted to use an absorbent during sexual relations, and they are not considered as destroying [their husband's] seed."[2] Some Rishonim (Ritva and Ra'a, ad loc.) understood that according to Rashi, since Rabbi Meir maintains that these women are permitted to use an absorbent during sexual relations, this implies that the Sages maintain that they are forbidden to do so. The Ritva raised an objection against this understanding: "The Sages who said: 'Any of these women carry on marital intercourse in a normal manner' – that is to say, they are forbidden to use an absorbent during sexual relations. But why - if there is danger involved, do we say that because 'the Lord preserves the simple,' this is forbidden, and she must enter herself into danger?" He therefore explains like Tosafot, that according to Rabbi Meir, these women must use an absorbent during sexual relations, whereas according to the Sages, they may, if they so desire, carry on marital intercourse in a normal manner, and they are not obligated to use an absorbent.[3]

          It seems that the disagreement between Rashi and the Ritva whether, according to the Sages, these women are forbidden to use an absorbent, or they are permitted to rely on the principle of shomer peta'im, but they are also permitted to use an absorbent, depends on the question discussed in the previous shiur, namely, whether shomer peta'im defines the situation as one in which there is no danger, or that shomer peta'im establishes that one is permitted to expose oneself to danger. Rashi must understand that shomer peta'im defines the situation as one in which there is no danger, and therefore he says that these women are forbidden to use an absorbent during sexual relations. This understanding eliminates the difficulty of the Ritva's question, for shomer peta’im indicates that there is no danger, not that she is endangering herself and relying on shomer peta'im.[4] According to the Ritva on the other hand, shomer peta'im constitutes an allowance to enter into danger, and therefore the Sages say that these women may use an absorbent, since there is a danger, even though it involves destruction of the husband's semen, but they are not required to do so if they are willing to expose themselves to the danger.[5]

          However, on this understanding of the Ritva, that one is permitted to expose oneself to danger relying on the principle of shomer peta'im, a difficulty arises. According to the Sages, once there is a permit to enter into the danger, why is the woman permitted to use an absorbent; surely there is a prohibition to destroy seed?[6] A similar difficulty arises within Rashi’s explanation of Rabbi Meir’s view. Why does he write that these women are permitted to use an absorbent, implying that they are not obligated to do so; if there is a danger which sets aside the prohibition to destroy seed, and therefore they are permitted to use an absorbent, they should be obligated to do so, owing to the danger! Why then are they permitted to enter into the dangerous situation?

V

The solution to these questions seems to stem from a fundamental difference between the definition of danger with regard to the fulfillment of mitzvot, and the definition of danger with respect to the prohibition falling upon a person to endanger himself. It seems that proofs can be adduced in support of this distinction, and in this way we can reconcile the difficulties raised against both Rashi and the Ritva:

1) The Mishna in Yoma (83a) states: "Every danger to human life sets aside Shabbat. If debris fell on someone, and it is doubtful whether or not he is there, or whether he is alive or dead, or whether he is a non-Jew or a Jew – one should remove [even on Shabbat] the heap of debris for his sake." The Tosafot (85a, s.v. u-le’fakei'ach) explain that whenever there is some factor that will lead to a situation of piku'ach nefesh, one may desecrate Shabbat, as the verse states (Vayikra 18:5): "That you shall live by them." And the mitzvot apply only in a situation that does not involve danger. They write as follows:

Ri says that the reason is that regarding piku'ach nefesh we do not follow the majority, as it is written: "That you shall live by them," and not that you shall die by them, that it [refrain from Shabbat violation and the like] cannot lead, in any situation, to the death of a Jew.

          Tosafot indicate that the setting aside of mitzvot even on account of doubtful piku'ach nefesh, is not because of a special law regarding the definition of danger and piku'ach nefesh, but rather that the mitzvot do not apply when there is an element of danger. According to this, it can be argued that, on the one hand, one is permitted to expose oneself to a certain degree of danger, without violating the prohibition of "take good heed of yourselves," while on the other hand, all of the mitzvot in the Torah are set aside by the rule of "that you shall live with them" to save someone from such a situation.

          This approach may be inferred from the Peri Megadim. In Hilkhot Shabbat he rules (Orach Chayyim 329, Mishbetzot Zahav no. 1): "If debris fell on someone, and it is doubtful whether or not he is there, or whether he is alive…, even if there are several doubts [one should remove the debris], for regarding the laws of piku'ach nefesh, we do not follow the majority, or the number of doubts." But elsewhere (Orach Chayyim 173, Mishbetzot Zahav, s.v. she'eila) he rules:

Question, does a double doubt (sefek sefeka) help regarding danger or not? Now, according to what I wrote in Yoreh De'a (110), that in the case of a sefek sefeka where there is a presumption (chazaka), there is no prohibition… we see then that we do not rely on a chazaka with respect to danger. The same is true that a sefek sefeka doesn't help. And according to him who maintains that a sefek sefeka is like a majority or even better that that, it may be suggested that a sefek sefeka helps in a case of danger like in a case of prohibition, but a single doubt is certainly forbidden. The matter requires further study.

          We see then that the Peri Megadim is in doubt whether or not a person is permitted to enter into a dangerous situation that falls into the category of a sefek sefeka, and he leaves the matter unresolved. We saw above that it was obvious to him that all the mitzvot are set aside even by doubtful danger (and even a sefek sefeka). Here, in contrast, he writes that in a case of sefek sefeka, it is possible that a person is permitted to enter into a perilous situation. This proves that even though a person is permitted to place himself into a situation that involves a minor danger, for the same level of danger he is permitted to desecrate Shabbat and violate other prohibitions, because the mitzvot do not apply in a situation where there is any element of danger, based on the rule of "that you shall live with them."

2) The Gemara in Chullin (9a) states:

As Rabbi Abba asked Rav Huna: If a wolf came and carried away the intestines [of a slaughtered animal], what is the law? [You ask] 'carried away'! Then they are not here! Rather, say: 'and perforated the intestines.' 'Perforated the intestines!' Then it is evident that the wolf did it! Rather say: 'carried away the intestines and brought them back perforated.' Now, what is the law? Are we concerned that the wolf inserted [its teeth] in a perforation that was there previously, or not? Rav Huna replied: We are not concerned that it inserted [its teeth] in a perforation. [Rabbi Abba] thereupon raised an objection [from the following Beraita]: If one saw a bird nibbling at a fig or a mouse nibbling at a melon, one must be concerned that it was nibbling in a pre-existing hole! He replied: How can you compare what is forbidden ritually with what is forbidden on account of possible danger to life! In the latter case we are certainly more apprehensive. Rava said:  What difference is there? Whenever there arises a doubt concerning a prohibition based on danger to life the stricter view is preferred, and the same is the case with regard to a doubt in connection with a ritual prohibition!

Abaye said to him: Is there then no difference between laws concerning danger to life and laws concerning ritual prohibitions?

          The concern here is that the bird might have made a hole in the very spot that a snake had previously made a hole, so that there is a danger to life (Rashi 9b, s.v. shema). According to Abaye a distinction is made between laws concerning danger to life and laws concerning ritual prohibitions, with greater stringency adopted in cases of danger than in cases of ritual prohibition (and thus in a comparable situation regarding a ritual prohibition we may be lenient). On the face of it, Rava's objection, why is a possible danger to life different than a ritual prohibition, is puzzling, for it is obvious that we distinguish between danger, about which we are stringent even in a case of doubt, and other things, for surely we are stringent even in a case of doubtful danger to life! Rather, the Gemara is not dealing with setting aside mitzvot because of danger to life, but rather with the allowance to enter into danger, and it seems that the special stringency in the case of sefek sefeka with respect to a danger to life was only said with regard to setting aside mitzvot, because mitzvot do not apply when there is danger. But it is possible that at this same level of doubt, a person would be permitted to endanger himself.

          Using this principle, we can explain Rashi's position regarding the viewpoint of Rabbi Meir. While there is a certain degree of danger here, this is an intermediate situation: On the one hand, the woman may use an absorbent and not be concerned about destroying the man's seed, because the mitzvot and prohibitions do not apply in a situation where there is even a small amount of possible danger to life. On the other hand, since this is only a slight concern, the woman is permitted to endanger herself. Accordingly, she is permitted to use an absorbent, but if she wishes she is permitted to take the risk.[7] This is also the way we can understand the position of the Ritva with respect to the view of the Sages: Indeed there is a danger, and therefore if the woman does not want to enter into danger, she may use an absorbent owing to the danger of getting pregnant, and the danger sets aside the prohibition of destroying her husband's seed. But if she so desires, she may engage in relations in the normal manner, and she is permitted to endanger herself in this way. Even though danger of this degree would be adequate to set aside prohibitions, nevertheless a person is permitted to enter into such a danger.

          There is also a practical difference between the viewpoints of Rashi and the Ritva with respect to circumcision on a cloudy day. Regarding the passage in Yevamot (72a) cited above, the Ritva writes: "According to this reason, someone who doesn't want to circumcise on a cloudy day, may refrain from doing so, and he does well not to rely on the principle of shomer peta'im. And similarly it is fitting not to circumcise on Shabbat when it is cloudy." The Ritva here is consistent with his own position, that in cases of shomer peta'im there is a danger, but one is permitted to enter into that danger. A person can, however, decide not to endanger himself, and thus put off circumcision owing to that level of danger. And it is even fitting not to circumcise in such a case when it falls out on Shabbat. On the other hand, according to Rashi, since there is no danger, it stands to reason that he would be obligated to perform the circumcision (just as the Sages forbid the use of an absorbent, because there is no danger).

VI

          The Radbaz (Responsa, III, no. 596) proposes that everyone agrees that “the three women” are permitted to use an absorbent, for even if we say that because of shomer peta'im, there is no danger, this is because God turns the dangerous situation into one that is danger-free. However, each individual is permitted to be concerned that "perhaps I am not deserving of heavenly mercy." Therefore, all agree that if she wishes, she may use an absorbent. The Achiezer (Responsa Achiezer, I, no. 23, 2, s.v. ve-hineh) understands that this is also the position of Rashi. The Achiezer notes that Rashi in Nidda (45a) seems to agree with Tosafot, that according to Rabbi Meir these women are obligated to use an absorbent, for Rashi writes there (s.v. meshamshot be-mokh): "Their remedy is to use an absorbent during sexual relations, so that they not become pregnant," which implies that they must use an absorbent. As for the Sages, the Radbaz writes that even according to Rashi these women are permitted to use an absorbent. Therefore the Achiezer writes that Rashi in Ketubbot should be understood along these lines as well: all agree that the three categories of women may use an absorbent during sexual relations. According to Rabbi Meir, the permit leads to an obligation to do so. According to the Sages, even these three categories of women are permitted but not obligated to use an absorbent during sexual relations, because of shomer peta'im. If, however, they do not wish to rely on shomer peta'im (as the Radbaz writes, because "perhaps I am not deserving of heavenly mercy"), even the Sages permitted them to use an absorbent.[8]

          According to this understanding, both Rashi and the Ritva agree that these women are permitted not to use an absorbent during sexual relations, choosing not to rely on shomer peta'im. There is, however, a difference between Rashi and the Ritva about how to understand the principle of shomer peta'im. The Ritva understands that the danger remains, and that is why the women must use an absorbent in sexual relations, according to Rabbi Meir, and they are permitted to use an absorbent, according to the Sages (this is explicit in his words in Yevamot 12b, s.v. shalosh nashim). According to Rashi, on the other hand, there is no danger here according to the Sages, but nevertheless one is permitted not to rely on shomer peta'im out of concern that one is not worthy of God's mercy.

VII

          According to the Radbaz, a person who is concerned may choose not to rely on shomer peta'im in a given situation. What is the law in a situation which is generally considered to be free of danger, but there are some other people who are concerned about a certain danger? Is one permitted to desecrate Shabbat because of the concerns of other people? The Rogatchover has a novel position on this issue. The Mishna in Berakhot (10b) states:

Beit Shammai say: In the evening every man should recline and recite [the Shema], and in the morning he should stand, as it says (Devarim 6:7): "And when you lie down and when you rise up." Beit Hillel say that every man may recite it in his own way, as it says (ibid.): "When you walk by the way." Why then is it said: "And when you lie down and when you rise up?" [This means that it should be recited] at the time when people lie down and at the time when people rise up. Rabbi Tarfon said: I was once walking by the way [in the evening] and I reclined to recite the Shema in the manner prescribed by Beit Shammai, and I incurred danger from robbers. They said to him: You deserved to come to harm, because you acted against the opinion of Beit Hillel.

Rabbi Tarfon was travelling and wished to practice stringency in accordance with the position of Beit Shammai, despite the fact that it involved a certain danger. The question may be raised: How could he have entered himself into danger? (Even if the law was in accordance with Beit Shammai, it seems that he should not have endangered himself.) The Tiferet Yisrael (no. 25) writes that when there is no certain danger, and the injury is not probable, one is permitted to rely on the fact that the mitzva will protect him.[9]

The Gemara in Berakhot (33a) states that even if a snake is wound around a person's foot he should not interrupt his prayers (amida). The Kovetz Shiurim (Pesachim, no. 32) asks: But surely in matters involving danger to life we do not follow the majority, and so the person should be concerned that there is a minority of snakes that are lethal. He answers as follows:

It is clear from here that the danger of a scorpion is not considered a probable injury. But in Berakhot 33 it says that they only taught [the ruling that one may not interrupt] about a snake, but for a scorpion he must interrupt his prayer. And Rashi explains that this is because most snakes are not lethal. And the objection is raised: But surely in matters involving danger to life, we do not follow the majority, and so one should be concerned about the minority [of snakes] that are lethal. It may be suggested: Since the majority are not lethal, it is not a probable injury, and so one can rely on the fact that “agents sent to perform a mitzva do not suffer injury” (Pesachim 8a). But in the case of a scorpion, he must interrupt his prayers, because of probable injury. And there he sees the scorpion, but here regarding [checking for chametz in] holes, where he does not know at all whether there is a scorpion, it is called an improbable injury.

          According to the Kovetz Shiurim, since most snakes do not cause injury, injury is not probable, and therefore one can rely on the principle that agents sent to perform a mitzva do not suffer harm. R. S.Z. Auerbach (brought in Shemirat Shabbat Ke-hilkhata, chap. 25, note 15) raises a question from the fact that one is permitted to kill a snake on Shabbat, even if it is not pursuing him, which indicates that snakes do in fact present a danger. If so, why must one rely on the principle that “agents sent to perform a mitzva do not suffer harm” rather than interrupt one's prayer when a snake is wound around his foot? He writes along the lines of the Kovetz Shiurim, that since he sees that the snake is not agitated, he is certain that it will not cause him injury, but nevertheless when he is not engaged in prayer, he is permitted to kill it, even on Shabbat. But he raises an objection against the Rambam who maintains that one is liable for a melakha performed on Shabbat not for its own sake, but nevertheless he permits killing a snake on Shabbat even if there is no present danger, while on the other hand, he does not permit a person to interrupt his prayer when a snake is wound around his foot.

The Rogatchover (in a postcard that he sent to Rav Segel, and came into my possession, published in Responsa Tzofnat Pa'ane'ach, no. 39) asked further on the Rambam who ruled (Hilkhot Shabbat 2:24) that if one person is being pursued by a snake, even another person is permitted to kill it, implying that only a snake that is chasing someone presents a danger. On the other hand, he rules (ibid. 11:4) that one is permitted to kill a dangerous creature, e.g., a snake in Eretz Yisrael, even if it is not pursuing anybody. The Rogatchover explains, based on an inference drawn from the Mishna (Shabbat 29b): "If one extinguishes the lamp because he is afraid of gentiles, robbers, or an evil spirit, or so a sick person can sleep, he is exempt," that the allowance is "because he is afraid." The Mishna did not write simply "because of gentiles," because here we are dealing with a case where there is no objective fear, but the particular person is concerned about danger, and since he is concerned, he is permitted to desecrate Shabbat. Based on this he explains the Rambam's rulings, that if the dangerous creatures are not pursuing a person, there is no danger and one is forbidden to desecrate Shabbat. But if they are pursuing him and he is afraid, he is permitted to kill them, even if there is no objective danger. This also answers the question that we raised earlier. If a person is worried about a danger that others don't regard as a danger, it would seem that according to the Rogatchover, he himself is permitted to desecrate Shabbat, but others are not permitted to do so.

According to this explanation of the Rogatchover, we can also answer the question raised by R. S.Z. Auerbach, that according to the Rambam, one is forbidden to kill a snake if it is not pursuing him, unless he is afraid, in which case he is permitted to kill the snake.[10] It would appear that the Gemara is addressing a case of a snake wound around a person's foot where the person is not afraid of the snake, but if he were in fact afraid of the snake, he would be permitted to interrupt his prayer.

(Translated by David Strauss)